On Dec. 10, 2003, the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), the American Booksellers Foundation for Free Expression (ABFFE), and the Freedom to Read Foundation (FTRF) filed this lawsuit against the Department of Justice (DOJ) under the Freedom of ...
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On Dec. 10, 2003, the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), the American Booksellers Foundation for Free Expression (ABFFE), and the Freedom to Read Foundation (FTRF) filed this lawsuit against the Department of Justice (DOJ) under the Freedom of Information Act (FOIA). The plaintiffs sought disclosure of DOJ and Federal Bureau of Investigation (FBI) records related to the DOJ's implementation of Section 215 of the USA PATRIOT Act. This case was filed in the U.S. District Court for the District of Columbia and assigned to Judge Ellen S. Huvelle.

In Aug. 2002, the plaintiffs filed a FOIA request to obtain records related to the FBI's implementation of the Patriot Act's surveillance provisions. Enacted in 2001, the Patriot Act substantially expanded the government's power to collect information about people living in the United States. In particular, Section 215 of the Act allowed the FBI to require disclosure from any person or organization of any tangible thing without probable cause or individualized suspicion, as long as there was an ongoing foreign intelligence or terrorism investigation.

In their FOIA request, the plaintiffs sought expedited processing, but the government did not comply. In an earlier case, the plaintiffs filed a lawsuit on Oct. 24, 2002 and moved for a preliminary injunction on Nov. 13, 2002. After a hearing, the court ordered the government to process the FOIA request. Although the government released 391 pages of responsive material, the government relied on an exemption to FOIA and issued the documents in heavily redacted form. One of the redacted documents was a list of times when the FBI had invoked Section 215 of the Patriot Act between Oct. 26, 2001, and Feb. 7, 2003. Both the list itself and the line indicating the total number of times that the FBI used Section 215 were redacted. The U.S. District Court for the District of Columbia granted the government's motion for summary judgment, upholding the government's withholding under Exemption 1 of FOIA. This case is available in this Clearinghouse.

In the following months, there was increased public concern about the Patriot Act and Section 215. The Attorney General issued a memo stating that Section 215 had never been used before and in doing so, declassified the information. The memo did not explain why the government was previously insistent that national security would be compromised if it released the number of times it had invoked Section 215. The plaintiffs then contacted former government counsel in the prior litigation and he agreed to request an unredacted copy of the Section 215 List from the FBI. However, the FBI did not respond to the attorney's request.

As a result, on Oct. 23, 2003, the plaintiffs submitted a FOIA request to the FBI seeking the following:

1. An unredacted copy of the Section 215 List, containing the total number of Section 215 requests received by the FBI; and2. Any and all records relating to Section 215 of the Patriot Act, including any and all records indicating the number of times Section 215 has been used.

The plaintiffs again sought expedited processing of the FOIA request on two grounds: (1) that the records related to a matter of widespread media interest implicating possible questions about the government's integrity which affect public confidence; and (2) that the plaintiffs were primarily engaged in the dissemination of information and there is an urgency to inform the public about an actual or alleged government activity. However, on Oct. 30, 2003, the FBI told the plaintiffs that their request for expedited processing had been denied. The plaintiffs then engaged in a protracted back-and-forth with the FBI's Office of the General Counsel, during which the plaintiffs attempted to obtain an unredacted copy of the Section 215 List. However, they were ultimately unable to obtain the List.

In its answer to the plaintiffs' complaint, the government raised grounds for dismissal, but did not file a dispositive motion. As a result, Judge Huvelle issued an order directing the government to file either a motion to dismiss or a motion for summary judgment. On Feb. 17, 2004, the government moved for partial summary judgment on the plaintiffs' FOIA request for the Section 215 List and the request for expedited processing. The government argued that the doctrine of claim preclusion barred the plaintiffs from re-litigating the release of an unredacted copy of the Section 215 List, as the court previously ruled the document was properly withheld. Additionally, the government argued that the court should deny plaintiffs' request for expedited processing because the plaintiffs failed to show that their FOIA request deserved expedited treatment at the expense of earlier submitted requests.

On Mar. 1, 2004, the plaintiffs also filed a cross motion for partial summary judgment, arguing that there were no genuine issues of material fact with respect to the government's non-compliance with the FOIA.

On May 10, 2004, Judge Huvelle ordered that the plaintiffs were entitled to expedited processing of their request and that the government was required to process the request for all records relating to Section 215 "as soon as practicable." ACLU v. DOJ, 321 F. Supp. 2d 24 (D.D.C. 2004). Judge Huvelle also ordered that the government had properly withheld the information contained in the Section 215 List.

Regarding the court's holding on expedited processing, Judge Huvelle weighed three factors in determining that the plaintiffs had demonstrated an "urgency to inform" and hence a "compelling need" for the requested documents. Regarding the first two factors —whether the request concerned a matter of current exigency to the American public and whether the consequences of delaying a response would compromise a significant recognized interest—the court noted the records' relation to current government surveillance efforts and held that the potential invasion of the public's privacy interests was of immediate concern. Regarding the third factor, the government conceded that the plaintiffs' request concerned federal government activity. Thus, the court found that the government had erroneously denied the plaintiffs' request for expedited processing. The court found that the plaintiffs also met the media-related standard for expedited processing. The plaintiffs had cited numerous newspaper articles about the Patriot Act, which the court held was sufficient to demonstrate that the subject matter of their request involved a matter of widespread media interest concerning the government's integrity.

Regarding the court's holding on the government's argued FOIA exemption, the court held that the doctrine of res judicata did not preclude the plaintiffs' request for the redacted Section 215 List. The court reasoned that the plaintiffs were attempting litigate a new question: whether the statistic they sought was properly withheld in light of the Attorney General's declassification decision with respect to that statistic. However, the court nonetheless held that the government had provided a sufficiently detailed and persuasive explanation to justify the continued withholding of the redacted Section 215 List under Exemption 1, FOIA's national security exemption.

In Aug. 2004, the parties agreed to a settlement. In exchange for the government's disclosure of the requested documents, the plaintiffs filed a motion to dismiss the case with prejudice on Aug. 24, 2004.

Though not all of the documents released by the government are available online, this page references some of their contents.

Following litigation about attorneys' fees, the docket ends in 2004. It is unclear what resulted with respect to attorneys' fees.